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Criminal - Murder - First Degree. R. v. Picard
In R. v. Picard (Ont CA, 2025) the Ontario Court of Appeal considered constructive first degree murder:(a) What must be proved for a constructive first degree murder conviction on the basis of kidnapping or forcible confinement
[89] Murder is either murder in the first degree or the second degree: s. 231(1). Murder is first degree murder if the Crown proves that it was planned and deliberate: s. 231(2). Alternatively, even if a murder is not planned and deliberate, the Crown may prove constructive first degree murder by showing that a victim’s death was “substantially caused” by an accused concurrent with another serious offence enumerated in ss. 231(4) to (6.2). These include so-called “domination” offences, such as kidnapping and forcible confinement, listed at s. 231(5).
[90] As held in R. v. Harbottle, 1993 CanLII 71 (SCC), [1993] 3 S.C.R. 306, to prove constructive first degree murder under s. 231(5), the Crown must prove that:(i) the accused is guilty of the underlying domination offence or of attempting to commit that offence;
(ii) the accused is guilty of the murder of the victim, either as a principal or as a party;
(iii) the accused participated in the murder in such a manner that he or she was a substantial cause of the victim’s death;
(iv) there was no intervening act of another that resulted in the accused no longer being substantially connected to the death of the victim; and
(v) the domination offence and murder were part of the same transaction; that is to say, the death was caused while committing the offence of domination as part of the same series of events. [91] The third Harbottle element – the accused’s participation in the murder and causal responsibility for the death – is often at issue in constructive first degree murder cases under s. 231(5). That is in no small part due to the “substantial causation” terminology being arguably misleading and engendering confusion about what the Crown must prove to satisfy this element.
[92] In Harbottle, Cory J. characterized the third element as the “substantial causation” test, which he described this way: “The substantial causation test requires that the accused play a very active role – usually a physical role – in the killing. Under s. 214(5) [now s. 231(5)], the actions of the accused must form an essential, substantial and integral part of the killing of the victim.”
[93] He went on to say that, in most cases, the Crown would have to prove that the accused physically caused the victim’s death. He acknowledged, however, that this would not be required in every case. For example, if an accused with intent to kill locked the victim in a cupboard while a co-accused set fire to that cupboard, then the accused who confined the victim might be found to have caused the victim’s death within the meaning of s. 231(5), and could thus be convicted of first degree murder.
[94] Eight years later, in R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, the Supreme Court suggested that the “substantial causation” language in Harbottle was somewhat misleading. In Nette, as in Harbottle, the court focused on cases where the accused is found liability for murder as a principal or co-principal. In this context, by the time the jury considers a potential verdict of constructive first degree murder, it will have already determined that the accused caused the victim’s death in a factual and legal sense, such that the accused is guilty of at least second degree murder. The trier of fact’s deliberation on the third Harbottle element focuses on whether aggravating circumstances justify the increased sentence and stigma of a first degree murder conviction under s. 231(5). As Justice Arbour explained at para. 64 of Nette:The additional “causation” requirement under s. 231(5) does not refer to factual causation but rather to an increased degree of legal causation. In other words, once the jury has determined that the accused committed murder, which entails a finding that the accused caused the victim’s death in both factual and legal terms, it is then necessary to consider whether the moral culpability of the accused, as evidenced by his role in the killing, justifies a verdict of first degree murder. As Cory J. states in Harbottle, “[t]he gravity of the crime and the severity of the sentence both indicate that a substantial and high degree of blameworthiness, above and beyond that of murder, must be established in order to convict an accused of first degree murder”… . Such a high degree of blameworthiness would only be established where the actions of the accused were found to be “an essential, substantial and integral part of the killing of the victim”… [Citations omitted.] [95] As stated more directly at para. 62 of Nette, in reference to Cory J.’s statement in Harbottle that “something more” is required to elevate second to first degree murder under s. 231(5): “The ‘something more’ is not that the accused caused more the death of the victim. What is required is that his participation in the killing be sufficiently immediate, direct and substantial to warrant the greater stigma and sentence attached to first degree murder” (emphasis in original).
[96] However, Arbour J. also noted that the situation can change when the accused’s liability for murder arises under the party liability provisions of s. 21(1)(b) and (c) and 21(2) of the Criminal Code, since a person found guilty of murder under these provisions may not have personally caused the victim’s death. As she explained at para. 62:Harbottle caused the victim’s death within the requirements of s. 231(5) of the Code because he was a co-principal in the murder. The degree of participation in the killing by a party whose liability for murder is based on aiding or abetting under s. 21(1)(b) or (c) of the Criminal Code or common intention under s. 21(2) of the Code, may, under the Harbottle formulation, be insufficient to permit a finding that the murder amounts to first degree under s. 231(5), which requires that the murder be committed “by that person” in the course of committing the underlying offence. [97] In R. v. Ferrari, 2012 ONCA 399, 287 C.C.C. (3d) 503, this court returned to the question of whether a person found guilty of murder as a party under s. 21(2) could ever be properly convicted of first degree murder pursuant to s. 231(5). Writing for the court, Rosenberg J.A. rejected the argument that a person who is guilty of murder as a s. 21(2) party can never be convicted of constructive first degree murder under s. 231(5). After reviewing Cory J.’s cupboard example in Harbottle, which assumed that the accused who locked the victim in the cupboard did so with the intent to kill, Rosenberg J.A. stated (at para. 71):In my view, liability under s. 231(5) would also flow if the one accused (the party), while not intending to kill the victim, knew that the principal offender would probably commit murder in carrying out the unlawful purpose, i.e., had the s. 21(2) mens rea for murder.. The participation by the party is the same whether the party intended to kill or merely knew that the principal offender would probably commit murder. Further, these acts of participation were a substantial cause of the death of the victim. I find it difficult to conceive that such a person would not have the requisite moral blameworthiness for first degree murder. Of course, a slight change in the facts might relieve the party of liability for first degree murder. If the victim was able to get out of the cupboard and was then shot by the principal offender, the acts of the party in confining the victim would not be a substantial cause of the death and the party would be guilty, at most, of second degree murder. [98] In summary, the question on the third Harbottle element is accordingly not whether the accused “substantially caused” the victim’s death, but whether the actions of the accused were “an essential, substantial and integral part of the killing of the victim”. As noted by Watt J.A. in R. v. Parris, 2013 ONCA 515, 300 C.C.C. (3d) 41, at para. 48, the requirement “might be better described as reflecting an enhanced or more demanding degree of participation in the killing than a requirement of a causation”. In Ferrari, at para. 79, Rosenberg J.A. used the phrases “essential, substantial and integral element” and “active participation” interchangeably to convey this requirement.
[99] This analytical approach is consistent with the Supreme Court’s reasoning on the facts in Harbottle. Harbottle and his friend Ross forcibly confined a woman. She was still confined with her hands tied when Ross strangled her, while Harbottle held her legs to prevent her from continuing to kick and struggle. The Court upheld Harbottle’s first degree murder conviction because Harbottle’s actions were a substantial and integral cause of the victim’s death. Harbottle did not strangle her but, as Cory J. noted, it was “difficult to believe that Ross could have strangled her in the absence of the assistance of Harbottle.”
[100] This court has also found that it was not an error to leave constructive first degree murder under s. 231(5) with the jury in some cases where the accused may not have had any direct physical contact with the victim at the time when the victim was killed. For example, in R. v. Brown (2002), 2002 CanLII 41917 (ON CA), 160 O.A.C. 141 (C.A.), leave to appeal refused, [2003] S.C.C.A. No. 216, the court concluded that:It was open to [the jury] to find that in the course of unlawfully confining the deceased, the appellant bound him and either shot or participated in shooting him in the leg, such that when the deceased was delivered up to the shooter … he could not flee or otherwise defend himself. Viewed that way, the appellant's role could properly be characterized as that of the executioner's henchman and his acts could be regarded, in accordance with R. v. Harbottle, as a substantial and integral cause of the death. [Citation omitted.] [101] Likewise, in R. v. Norouzali (2003), 2003 CanLII 10348 (ON CA), 177 C.C.C. (3d) 383 (Ont. C.A.), the appellant and a co-accused were convicted of unlawfully confining and transporting a man to a wooded area where he was shot and killed. This court accepted that, based on the evidence at trial, the jury could have found that only one of the two co-accused had shot the victim. Still, it held that even if the appellant was not the shooter, and even if the jury had a reasonable doubt about whether the killing of the deceased was planned and deliberate, the jury could have found that the appellant’s actions were a substantial and integral cause of the victim’s death, because the evidence indicated that “[i]t took both the appellant and the co-accused to forcibly escort [the deceased] to his execution site”, which was surrounded by a six foot high fence topped by barbed wire: Norouzali, at para. 53. In essence, the jury in Norouzali was entitled to view the execution site as analogous to the cupboard in Cory J.’s hypothetical example in Harbottle. . R. v. Nnane
In R. v. Nnane (Ont CA, 2024) the Ontario Court of Appeal dismissed a first degree murder appeal, here dwelling on issues of "planning and deliberation":The evidence was sufficient to establish that the murder was planned and deliberate
[56] The appellant submits that the evidence was incapable of establishing the requirements of planning and deliberation. As for planning, there was no evidence suggesting that he would have known the victims were at the LCBO. The shooting must have been a crime of opportunity following a chance encounter with the victims. There was little time to make a plan; shots were fired approximately four minutes after the appellant and Fountain had entered the LCBO.
[57] The appellant cites several cases in which this court has substituted convictions for second degree murder where there were relatively short periods of time leading up to a murder: R. v. Campbell, 2020 ONCA 221, 149 O.R. (3d) 675 (nine minutes); R. v. Hafizi, 2019 ONCA 2, 373 C.C.C. (3d) 264 (16 minutes); and R. v. Robinson, 2017 ONCA 645, 352 C.C.C. (3d) 503 (seconds or a few minutes). The appellant argues that, even if planning and deliberation was possible in the limited time available, the Crown failed to negate the other plausible inference that the shooting was spontaneous. There was no indication that a plan was in place. The shooter simply ran from the car, shot the victims, then returned to the car. The appellant argues that if the shooting had been planned, he and Fountain would have waited in the parking lot rather than walk into the LCBO where their presence be caught by the security cameras.
[58] The Crown argues that evidence of planning and deliberation is clear from the appellant’s actions caught on the security footage. The appellant picked his target once inside the LCBO and left the store immediately after doing so. He changed seats in the Fusion so that someone else would be driving and ready to leave as soon as the shooting was complete. The appellant did not commence the shooting until Fountain had also left the LCBO, so that both could get away quickly. The time between the appellant’s attendance at the LCBO and the shooting was relatively brief, but this was not a case in which the appellant was reacting to an unfolding event such as a fight or confrontation; the appellant initiated contact with Anzonola in the LCBO and implemented a plan to murder him.
[59] I accept the Crown’s submission.
[60] The cases cited by the appellant are decided on their unique facts. They are not authority for the proposition that any particular period of time is required to support a finding of planning and deliberation, or more generally that planning and deliberation is not possible in a relatively brief period of time.
[61] In Campbell, the first appellant was angry with the victim and the second appellant shot the victim when told to do so by the first appellant following a chance meeting. This court substituted a conviction for second degree murder because the evidence was equally consistent with an impulsive act.
[62] In Hafizi, the appellant, then 18 years old, killed the victim after he was ejected from a nightclub following an altercation with the victim and his friends. Armed with a knife, he ran towards the victim and stabbed him as he left the club. This court considered that the swiftness of the attack was indicative of an impulsive act and substituted a conviction for second degree murder as a result.
[63] In Robinson, the appellant, who had been drinking with the deceased, left the room and returned minutes later with a pipe that he used to hit the deceased in the head. Significantly, the appellant became upset when the victim fell to the ground following the assault; he searched for a pulse and insisted the victim could not be dead. He told his partner, present at the time of the attack, that he had not meant to hurt the victim, much less kill him. In these circumstances, this court concluded that the appellant’s conduct belied any inference that he had planned his attack knowing that he would kill the victim and that he deliberated upon his plan before executing it. The court entered an acquittal on the charge of first degree murder and ordered a trial on second degree murder as a result of errors in the instructions to the jury.
[64] The relatively brief periods of time involved in these cases were not determinative of the lack of planning and deliberation. Brief time periods may well support a finding that a killing was impulsive, but they do not require it. Planning and deliberation can occur in a brief period of time and a simple plan can be carried out quickly.
[65] The features of this case provide ample basis for the jury to have been satisfied beyond a reasonable doubt that the appellant was guilty of first degree murder. There is no evidentiary support for the conclusion that the appellant acted impulsively or spontaneously in shooting the victims. There was no prior incident at the LCBO precipitating any response from the appellant, let alone a deadly one.
[66] The facts of this case speak to a planned and deliberate execution, albeit one for which there is no apparent motive. The absence of motive is a cause for wonder, but it does not change the inherent nature of the appellant’s actions. In particular, it neither precludes nor undermines the conclusion that the killing was planned and deliberate. . R. v. Bush
In R. v. Bush (Ont CA, 2024) the Ontario Court of Appeal considers first degree murder, here involving forcible confinement:[41] Pursuant to s. 231(5)(e) of the Criminal Code, and irrespective of whether it is planned and deliberate, murder is first degree murder when the death is caused while committing forcible confinement. In this case, the evidence that the victims were killed while forcibly confined was overwhelming. Recall that, when found, all three victims had plastic bags affixed over their heads with twine tied around each of their necks, which was attached to their ankles. Forcible confinement occurs if, for any significant amount of time, a person is coercively restrained so that they cannot move according to their own desire: R. v. Sundman, 2022 SCC 31, 416 C.C.C. (3d) 371, at para. 21. In my view, the fact that the murders took place while all three victims were confined is irrefutable. And, unlike planning and deliberation, the trial judge provided a complete and legally correct instruction on unlawful confinement and murder.
[42] The evidence clearly established that all three victims were forcibly confined when they were killed. As such, there is no realistic possibility that a new trial would generate an outcome other than a conviction for first-degree murder.
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